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Judicial independence

by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

Over the weekend, President Trump went on a 2-day-longTwitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations.

What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty.

This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that.

Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives.

Almost immediately after the Citizens United decision, outside spending in elections spiked. Over the next five years, it more than doubled. Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections.

Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices. Further, the last five years have seen a flood of dark money into elections. As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning. Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts. For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.

While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?

The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending. Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.

TheWashington Post recently published a "Letter to the Editor" from ACS President Caroline Fredrickson, which touched on the pernicious influence of campaign contributions on state courts.

In response to a Post article citing efforts by the U.S. Chamber of Commerce to push its agenda through various state courts (perhaps having realized federal courts have already been conquered), Fredrickson cited ACS’s 2013 report, Justice at Risk, which provides an empirical analysis of campaign contributions and their impact state judicial decisions. As Fredrickson noted, the data shows that “the more campaign contributions from business interests that justices receive, the more likely they are to side with business litigants.”

Since its release in June, Justice at Risk has been routinely cited by media outlets across the nation, including: The Atlantic, Mother Jones, The Des Moines Register, The Miami Herald and many others. As former Montana Supreme Court Justice James C. Nelson phrased it in the pages of The Missoulian, Justice at Risk is an “objective, non-partisan report . . . [that] provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012.”